Gujarat High Court
S A Upadhyay vs Gujarat Maritime Board on 16 February, 2026
NEUTRAL CITATION
C/SCA/3640/2013 CAV JUDGMENT DATED: 16/02/2026
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Reserved On : 03/02/2026
Pronounced On : 16/02/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3640 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
✓
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S A UPADHYAY
Versus
GUJARAT MARITIME BOARD
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Appearance:
MR. RISHABH ACHARYA WITH MS. HARSHAL N PANDYA (3141) for the
Petitioner(s) No. 1
MR. KANUBHAI M. PATEL, SR. ADVOCATE WITH MR. HAMESH C. NAIDU
WITH MS DHARMISHTA RAVAL(707) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
CAV JUDGMENT
1. Heard Ms. Harshal N. Pandya, learned advocate
with Mr. Rishabh Acharya, learned advocate for the
petitioner and Mr. Kanubhai M. Patel, learned Senior
Advocate with Ms. Dharmishta Raval, learned advocate
with Mr. Hamesh C. Naidu, learned advocate for the
respondent, at length.
2. The present writ petition is filed under Articles 14,
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16, and 226 of the Constitution of India, inter alia,
seeking following reliefs:
“7. The petitioner respectfully prays that, on the basis of the facts
and circumstances as mentioned hereinabove and which may be
urged at the time of hearing, the Honourable Court may be
pleased to issue a writ of mandamus or any other appropriate
writ, order or direction to the respondent-authorities and may be
pleased to :-
(A) direct the authorities of the respondent Board to grant the
first higher grade scale of Rs. 5500-9000 to the petitioner from
his due date, with all consequential benefits, and(B) further be pleased to direct the respondent authority to pay
arrears to the petitioner flowing from the above prayer clause
and also to fix pension and other retirement on that basis and
pay arrears thereof with interest at the rate which the
Honourable Court may consider as just and proper in the facts
and circumstances of the case, and(C) award the cost of this petition, and
(D) pending admission and final disposal of this petition, the
Honourable Court may be pleased to direct the respondent
authority to take appropriate decision for grant of first higher
grade scale of Rs. 5500-9000 to the petitioner considering the
judgment and order dated 25.3.2010 as confirmed by the
Honourable the Division Bench vide judgment dated 26.4.2011
and by the Honourable the Supreme Court vide order dated
27.1.2012, and/or(E) grant any other relief or pass any other order which the
Honourable Court may consider as just and proper in the facts
and circumstances of the case.”
3. BRIEF FACTS
3.1 It is the case of the petitioner in this petition that
he was appointed as a Khalasi with the respondent on
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03.03.1976. Subsequently, he was promoted to the post of
Operator in the year 1987 and later on promoted as a
Tradesman in the pay scale of Rs. 1200 – 2040. The said
pay scale was revised to Rs. 4000-6000 w.e.f. 01.01.1996.
Upon completion of nine years of service to the post of
Tradesman, the petitioner claimed higher grade of Rs.
5500-9000 as prescribed for Foreman, i.e., the next
promotional post.
3.2 It appears that the petitioner took voluntary
retirement on 30.04.2004 and after his retirement, the
respondent has offered him higher pay scale of Rs. 4500-
7000 and will be paid to him subject to he, submit
undertaking / approval letter of accepting the said higher
pay scale. The petitioner appears to have not accepted
the said offer, but made representation to re-consider the
said offer. The respondent has not accepted his
representation and rejected it on 06.11.2007.
3.3 At the same time, the respondent-board sought
recovery from existing Tradesmen working with it as
regards wrongly granted the higher pay scale to them,
which was prescribed for the post of Foreman, i.e., Rs.
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5500-9000, not immediate next promotional post from the
post of Tradesman. Those aggrieved Tradesman
approached this Court and eventually succeeded in their
claim upto Hon’ble Apex Court. Thus, it has been held
that next promotional post from the Tradesman would be
the Foreman.
3.4 In view of the aforesaid facts and developments
taken place, the petitioner appears to have made a
representation on 23.11.2010 to the respondent-board to
grant him the similar higher pay scale of Rs. 5500-9000
instead of Rs.4500-7000 as granted to other Tradesmen.
Having not received any positive response, he preferred
this petition.
4. SUBMISSIONS ON BEHALF OF PETITIONER:
4.1 Ms. Pandya, learned advocate would submit that the
issue germane in the matter is no longer res integra as
decided by the learned Single Judge, confirmed by the
Hon’ble Division Bench and so also by the Hon’ble Apex
Court, whereby it has been held that the Tradesman
working with the respondent-board is entitled to the first
higher pay scale of Rs. 5500-9000 instead of Rs.4500-
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7000. It is submitted that after hearing the respondent
at length, this Court in the aforesaid decisions has
categorically arrived at the conclusion that the next
available promotion from the post of Tradesman is
Foreman and not Mistry. Accordingly, there was no
mistake on the part of the respondent-board to grant the
first higher pay scale of Rs. 5500-9000 to Tradesmen
upon completion of nine years of service.
4.2 Ms. Pandya, learned advocate, would further submit
that the petitioner was insisted upon to file his
undertaking / approval letter by the respondent to
receive the benefit of first higher pay scale, i.e., Rs.
4500-7000 instead of Rs. 5500-9000, in that view of the
matter, the petitioner has not submitted such
undertaking / approval letter. It is submitted that since
all other similarly situated persons like petitioner were
granted the benefit of first higher pay scale of Rs. 5500-
9000, the action of the respondent in not granting such
benefit amounts to violation of Articles 14 and 16 of the
Constitution of India.
4.3 Ms. Pandya, learned advocate would further submit
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that the respondent has acted in an arbitrary manner,
thereby violated Article 14 of the Constitution of India,
inasmuch as, the petitioner could not have been
compelled to receive lower higher pay scale than what
was otherwise available to him. It is submitted that the
respondent was under legal obligation to release the
benefit of first higher pay scale as and when accrued to
the petitioner, i.e., in the year 2002. It is further
submitted that after taking VRS, the claim of the
petitioner to receive the first higher pay scale was under
active consideration with the head office of the
respondent-board, which decided to grant it vide its
intra-departmental communication dated 26.12.2005, but
illegally insisted to submit undertaking / approval letter.
4.4 Ms. Pandya, learned advocate, would further submit
that there is no delay and laches on the part of the
petitioner in preferring the present petition. It is
submitted that the petitioner was all throughout engaged
himself in making representation to the respondent and
was under bona fide impression that upon final
conclusion of the said litigation by the Hon’ble Apex
Court giving quietus to the issue, the respondent-board
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will release the benefit. It is further submitted that
there is no mala fide intention on the part of the
petitioner to prefer this petition in the year 2013; rather
it is a continuous cause of action, whereby the claim of
the petitioner may not be defeated on the ground of
delay and laches. It is further submitted that no
prejudice would be caused to the respondent as by
granting the relief as prayed in this petition, no third-
party right would be prejudiced.
4.5 Ms. Pandya, learned advocate, would further submit
that post-VRS, when the respondent agreed to grant
higher pay scale, albeit, Rs. 4500-7000 instead of 5500-
9000, at this stage the respondent cannot be allowed to
submit that upon taking VRS, no relief can be granted
to the petitioner as regards the higher pay scale.
4.6 Making the above submissions, learned advocate for
the petitioner would request this Court to allow the
present writ petition.
4.7 To buttress her arguments, she would rely on the
following judgments:
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(i) Sanjay Kumar Upadhyay Vs. State of
Jharkhan reported in AIR 2026 SC 153: 2025 INSC
1445.
(ii) Mohanbhai Dudabhai Vadhiyari Vs. Gujarat
Maritime Board reported in 2024 (1) GLR 476.
(iii) State of Uttar Pradesh Vs. Arvind Kumar
Srivastava reported in 2015 (1) SCC 347.
(iii) Ashwin N. Acharya Vs. Gujarat Maritime Board
Through Chief Executive Officer rendered in Special
Civil Application No. 7076 of 2013 dated 25.10.2018 .
(iv) Gujarat Maritime Board Through Chief
Executive Officer Vs. Ashwin N. Acharya rendered
in Letters Patent Appeal No. 1521 of 2018 dated21.10.2020.
(v) Vipulkumar Atmaram Parekh vs. State of
Gujarat reported in 2009 (5) GLR 3914.
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5. SUBMISSIONS ON BEHALF OF RESPONDENT:-
5.1 Per contra, Mr. Patel, learned Senior Advocate for
the respondent-board, has strenuously opposed thispetition on all possible grounds and would submit that
this petition should not be entertained by this Court as
barred by delay and laches. It is submitted that the
claim of the petitioner to get higher pay scale was
expressly denied by the respondent vide its
communication dated 06.11.2007, whereas the present
petition is filed in the year 2013. There is no
explanation worth coming forward from the side of the
petitioner for this huge delay. As per the settled position
of law, this Court may not exercise its extraordinary
jurisdiction under Article 226 in favour of an indolent
petitioner, who slept over his rights for years together.
5.2 Mr. Patel, learned Senior Advocate, would further
submit that the petitioner was simply a fence-sitter, who
awaited till the final outcome of the aforesaid litigation
and, having come to know of it, woke up from deep
slumber and filed this petition. This Court should not
exercise its discretion in favour of the petitioner.
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5.3 Mr. Patel, learned Senior Advocate, would further
submit that upon accepting VRS in the year 2004, the
petitioner is precluded to receive any benefit of a higher
pay scale as claimed in this petition. It is submitted
that once the petitioner accepted VRS, the relationship
between the petitioner and the respondent as employee-
employer stands extinguished. As per numerous decisions
of the Hon’ble Apex Court, such type of petitioner cannot
be allowed to claim any higher pay scale.
5.4 Mr. Patel, learned Senior Advocate, would further
submit that there is no error committed by the
respondent whereby it offered higher pay scale of Rs.
4500-7000 to the petitioner in the year 2006-07,
inasmuch as, as per the Government Resolution dated
14.08.1998, if there are more than one promotional posts
in different scales of pay, the first higher pay scale shall
be the pay of the lowest promotional post. Accordingly,
the higher pay scale which was prevailing for the post of
Mistry i.e. next lowest promotional post was offered to
the petitioner being Rs. 4500-7000.
5.5 Making the above submissions, Mr. Patel, learned
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Senior Advocate would request this Court to dismiss the
present writ petition.
5.6 To buttress his arguments, he would rely upon the
following judgments:
(i) Chennai Metropolitan Water Supply and
Sewerage Board Vs. T.T. Murali Babu reported in
(2014) 4 SCC 108.
(ii) Karnataka Power Corpn. Ltd. Vs. K.
Thangappan reported in (2006) 4 SCC 322.
(iii) State Of Orissa & Anr Vs. Mamata Mohanty
reported in (2011) 3 SCC 436.
(iv) Mrinmoy Maity Vs. Chhanda Koley reported
in 2024 AIR (SC) 2717.
(v) Surjeet Singh Sahni Vs. State of Uttar
Pradesh and Others reported in (2022) 15 SCC 536.
(vi) A.K. Bindal Vs. Union of India reported in
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(2003) 5 SCC 163.
(vii) Officers & Supervisors of I.D.P.L. Vs.
Chairman & M.D., I.D.P.L. reported in 2003 (6)
SCC 490.
6. No other and further submission has been made by
the learned advocates for the respective parties.
ANALYSIS:
7. Having heard the learned advocates for the
respective parties and after going through the pleadings
of the parties, following would emerge:
7.1 The petitioner was serving as a Tradesman from
14.07.1993 until voluntary retirement from his service on
30.04.2004.
7.2 Upon completion of nine years of service at the post
of Tradesman, the petitioner claimed higher pay scale of
Rs. 5500-9000, which was prevailing pay scale for the
post of Foreman, i.e., the next promotional post from the
post of Tradesman.
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7.3 The local office at Bhavnagar of the respondent
recommended the claim of the petitioner to the head
office, but the same was not approved; rather it was
decided to offer higher pay scale of Rs. 4500-7000 vide
head office communication dated 26.12.2005, which
according to respondent a pay scale of the lowest
promotional post, i.e., Mistry. It requires to be noted
here that said decision was taken by the competent
authority of the respondent post-retirement of the
petitioner.
7.4 While offering the said higher pay scale, there was
a condition imposed by the respondent upon the
petitioner to give his undertaking / approval letter to
accept higher pay scale of Rs. 4500-7000 against his
claim of pay scale of Rs. 5500-9000. The petitioner did
not agree to accept such proposal; rather cited other
instances to convince the respondent-board to release him
higher pay scale of Rs. 5500-9000.
7.5 On 29.10.2007, the competent authority of the
respondent decided not to grant the claim of the
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petitioner, rather advised the local office to grant higher
pay scale of Rs. 4500-7000 as per the Government
Resolution dated 14.08.1998. Accordingly, petitioner was
communicated the aforesaid decision by local office vide
its communication dated 06.11.2007.
7.6 The respondent-board had also sought a recovery
from other Tradesmen who, according to the respondent,
were granted the wrong benefit of higher pay scale of
Rs. 5500-9000 instead of Rs. 4500-7000. Those Tradesmen
had approached this Court in the year 2008 and on
merits, convinced this Court that stance of the
respondent is wrong and the correct applicable higher
pay scale is Rs. 5500-9000, and not Rs. 4500-7000, as
decided by the respondent.
7.7 Finally, when the Apex Court dismissed the
petitions of the respondent, subsequently, the petitioner
submitted his representation to the respondent, but had
not got any response, thereby approached this Court on
28.03.2013 by way of this petition.
8. As such, the issue germane in the matter as
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regards the appropriate higher pay scale to be given to
Tradesman working with respondent, is squarely covered
by the decision of the Co-ordinate Bench of this Court
dated 25.03.2010 passed in Special Civil Application No.
11923 of 2008 and allied matters, which was confirmed
by the Division Bench of this Court vide its oral
judgment dated 26.04.2011 passed in Letters Patent
Appeal No. 1774 of 2010, wherein it has been
categorically held that next promotional post of
Tradesman would be “Foreman”, therefore, the
respondent-board did not commit any mistake in granting
the higher pay scale prescribed for the post of Foreman
to the Tradesmen. It would be apt to refer the pertinent
observation of the Division Bench of this Court in the
said matter, which read thus:
“8. …The main emphasis of the learned Senior Counsel is that
in case where there is no promotional post, the first higher grade
pay scale would be higher grade pay scale corresponding to its
existing pay scale as specified in the schedule annexed to this
Government Resolution. On the strength of the first proviso,
learned senior counsel has urged that the Government Resolution
dated 5.7.1991 prescribes that for existing scale of Rs.1200-2040,
the higher grade pay scale as per the schedule would be Rs.1400-
2600. Similar provisions were made in Government Resolution
dated 16.8.1994 and 14.8.1998. This argument of the learned
senior counsel is based on the assumption that from the post of
Tradesman, a person is to be promoted on the post of Mistry and
Mistry is to be promoted on the post of Foreman. There is a
fallacy in the argument of the learned counsel for the appellant.
The pay scale of Tradesman and Mistry being the same since
the inception of Rules 1975 and the post of Mistry andPage 15 of 33
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Tradesman were interchangeable and transferrable from one
post to other. At no port in Gujarat, the post of Mistry was
sanctioned by the Head Office of the Board nor there is any
material on record to prove the sanctioned set up of the post of
Mistry for any port. Therefore, in such situation, the next
promotional post of Tradesman would be Foreman. Paragraph
(iii) and its first proviso and the schedule of the Government
Resolution dated 5.7.91, and Government Resolutions dated
16.8.1994 and 14.8.1998 would not be applicable to the facts of
the case. We have already held that the post of Mistry was not in
existence under the Board, the next promotional post of
Tradesman was Foreman.
9. From the facts of this case, it is clear that the appellants had
given higher grade pay scale of Foreman to the respondents
which was next promotional post of Tradesman after completion
of nine years of service. The benefit was granted by the appellant
from the date each employee completed nine years service. There
was no audit objection and the approval to the grant of higher
grade pay scale was approved by the superior officers and the
authorities of the Head Office of the Board. The employees were
offered scheme of voluntary retirement in the year 2004 and they
have accepted voluntary retirement scheme and accordingly their
pay scale was re-fixed and their pension was also fixed and large
number of employees are drawing pension and some of them are
still in service. After 17-18 years, the appellants are estopped
from challenging that wrong pay scale was given to the
respondents under a mistake. Moreover, we have held that the
next promotional post of Tradesman was Foreman, therefore,
we are of the firm opinion that the Board did not commit any
mistake in granting higher grade pay scale and post of Foreman
to the respondents.”
(emphasis supplied)
8.1 The aforesaid aspect of the matter cannot be
disputed by the respondent-board. In view of the above,
Mr. Patel, learned Senior Advocate, during the course of
argument, is unable to countenance the stance of the
respondent in offering Rs. 4500-7000 to the petitioner. In
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view of the aforesaid decision of this Court, not
disturbed by the Hon’ble Apex Court, the petitioner was
entitled to receive higher pay scale of Rs. 5500-9000,
instead Rs. 4500-7000, as already offered by the
respondent-board.
8.2 Yet, Mr. Patel, learned Senior Advocate for the
respondent, has resisted to grant the benefit as claimed
in this petition; firstly, on the ground of delay and
laches and, secondly, that since petitioner has accepted
VRS, he is not entitled to receive higher pay scale and,
thirdly, that no error when the respondent offered said
higher pay scale to petitioner, but the same was not
accepted by the petitioner.
9. Now, so far as delay and laches is concerned, there
is no provision prescribed under the law to file petition
under Article 226 of the Constitution of India within
stipulated period of time. At the same time, the
discretionary power available to this Court under Article
226 of the Constitution of India requires to be exercised
in a judicious manner. In a case where this Court finds
the action and approach of the petitioner, who for no
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reason, remained silent for years together and actually,
woke up from deep slumber and complained of violation
of his fundamental rights, in an appropriate case, this
Court may not exercise its discretion in favour of such
type of petitioners.
9.1 Nonetheless, there is no absolute proposition of law
laid down by the Hon’ble Apex Court in the cited
decisions by Mr. Patel, learned Senior Advocate, that in
all cases of delay and laches, this Court should dismiss
the petition; rather, it would be apposite to refer the
relevant observation of the Hon’ble Apex Court in the
case of Tridip Kumar Dingal Vs. State of West Bengal
reported in (2009) 1 SCC 768, which is also referred to
in a recent past decision of the Hon’ble Apex Court in
the case of Mrinmoy Maity (supra) [cited by Mr. Patel,
learned Senior Advocate], wherein it was held thus:
“11. For filing of a writ petition, there is no doubt that no fixed
period of limitation is prescribed. However, when the
extraordinary jurisdiction of the writ court is invoked, it has to
be seen as to whether within a reasonable time same has been
invoked and even submitting of memorials would not revive the
dead cause of action or resurrect the cause of action which has
had a natural death. In such circumstances on the ground of
delay and laches alone, the appeal ought to be dismissed or the
applicant ought to be non-suited. If it is found that the writ
petitioner is guilty of delay and laches, the High Court ought toPage 18 of 33
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dismiss the petition on that sole ground itself, inasmuch as the
writ courts are not to indulge in permitting such indolent litigant
to take advantage of his own wrong. It is true that there cannot
be any waiver of fundamental right but while exercising
discretionary jurisdiction under Article 226, the High Court will
have to necessarily take into consideration the delay and laches
on the part of the applicant in approaching a writ court.
12. This Court in Tridip Kumar Dingal v. State of W.B. [Tridip
Kumar Dingal v. State of W.B., (2009) 1 SCC 768 : (2009) 2
SCC (L&S) 119] has held to the following effect: (SCC p. 784,
paras 56-58)“56. We are unable to uphold the contention. It is no
doubt true that there can be no waiver of fundamental
right. But while exercising discretionary jurisdiction
under Articles 32, 226, 227 or 136 of the Constitution, this
Court takes into account certain factors and one of such
considerations is delay and laches on the part of the
applicant in approaching a writ court. It is well settled
that power to issue a writ is discretionary. One of the
grounds for refusing reliefs under Article 32 or 226 of the
Constitution is that the petitioner is guilty of delay and
laches.
57. If the petitioner wants to invoke jurisdiction of a writ
court, he should come to the Court at the earliest
reasonably possible opportunity. Inordinate delay in
making the motion for a writ will indeed be a good ground
for refusing to exercise such discretionary jurisdiction.
The underlying object of this principle is not to encourage
agitation of stale claims and exhume matters which have
already been disposed of or settled or where the rights of
third parties have accrued in the meantime (vide State of
M.P. v. Bhailal Bhai [State of M.P. v. Bhailal Bhai, (1964)
15 STC 450 : 1964 SCC OnLine SC 10 : (1964) 6 SCR
261 : AIR 1964 SC 1006] , Moon Mills Ltd. v. Industrial
Court [Moon Mills Ltd. v. Industrial Court, 1967 SCC
OnLine SC 117 : AIR 1967 SC 1450] and Bhoop Singh v.
Union of India [Bhoop Singh v. Union of India, (1992) 3
SCC 136] ). This principle applies even in case of an
infringement of fundamental right (vide Tilokchand
Motichand v. H.B. Munshi [Tilokchand Motichand v. H.B.
Munshi, (1969) 1 SCC 110 : (1970) 25 STC 289] , DurgaPage 19 of 33
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Prashad v. Controller of Imports and Exports [Durga
Prashad v. Controller of Imports and Exports, (1969) 1
SCC 185] and Rabindranath Bose v. Union of India
[Rabindranath Bose v. Union of India, (1970) 1 SCC
84] ).
58. There is no upper limit and there is no lower limit as
to when a person can approach a court. The question is
one of discretion and has to be decided on the basis of
facts before the court depending on and varying from
case to case. It will depend upon what the breach of
fundamental right and the remedy claimed are and when
and how the delay arose.”
(emphasis supplied)
9.2 Thus, in view of the aforesaid pronouncement and
considering the ratio of the aforesaid decisions of the
Hon’ble Apex Court, it would depend upon the facts and
circumstances of each case as well as breach of
fundamental rights and the remedy claimed.
10. In the present case, prior to and or post-retirement,
the petitioner was pursuing his claim with the
respondent, having come to know about the decision of
learned Single Judge of this Court passed in aforesaid
matter, made representation to the respondent on
23.11.2010. Of course, till such time or thereafter, the
petitioner had not decided to approach this Court,
perhaps because of the issue was writ large and pending
before the Division Bench of this Court and Hon’ble
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Apex Court; a quietus was finally given to the issue
when the Apex Court dismissed the respondent’s petition
vide its order dated 27.01.2012.
11. It is not in dispute that the petitioner is entitled to
receive pension; in view of the aforesaid circumstances, if
the claim of the petitioner would have been granted,
whereby the higher pay scale of Rs. 5500-9000 would be
considered, then as a matter of course, his pension
would have been revised.
11.1 It is settled position of law that in a case of
continuing wrong, irrespective of delay, the claim of the
petitioner can be entertained by this Court, albeit
restricting to monetary benefits for three years prior to
the filing of the writ petition. One cannot dispute that
benefit of higher pay scale and pensionary benefits if not
granted as per law, it amounts to continuing wrong as
this benefit would have direct bearing on the salary and
pension, as the case may be, available to the petitioner
on monthly basis.
11.2 At this stage, it would be apposite to refer to
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and rely upon the ratio of the cited decision of the
Hon’ble Apex Court in the case of Sanjay Kumar
Upadhyay (supra), wherein held thus:
“24. The next question is whether the writ petition filed by the
Appellant in the year 2005 suffered from delay and laches, having
been instituted approximately 13 years after his appointment in the
years 1992. It is well-established that in matters involving pay scale
parity based on removal of anomalies, the cause of action continues
from month to month as long as the anomaly persists. Every month
when the employee receives lesser pay than his similarly situated
counterparts constitutes a fresh cause of action. In M.R. Gupta v.
Union of India6, while adjudicating on the issue of whether claim of
correct pay-fixation was barred by delay and limitation, this court
observed as follows – “6. The Tribunal misdirected itself when it
treated the appellant’s claim as “one time action” meaning thereby
that it was not a continuing wrong based on a recurring cause of
action. The claim to be paid the correct salary computed on the basis
of proper pay fixation, is a right which subsists during the entire
tenure of service and can be exercised at the time of each payment of
the salary when the employee is entitled to salary computed correctly
in accordance with the rules. This right of a government servant to be
paid the correct salary throughout his tenure according to
computation made in accordance with the rules, is akin to the right of
redemption which is an incident of a subsisting mortgage and subsists
so long as the mortgage itself subsists, unless the equity of
redemption is extinguished. It is settled that the right of redemption is
of this kind. (See Thota China Subba Rao v. Mattapalli Raju [AIR
1950 FC 1 : 1949 FCR 484 : 50 Bom LR 181 : (1950) 1 MLJ
752] ).”(emphasis supplied)
25. In the present case, Appellant filed writ petition before High
Court praying for issuance of an appropriate writ to the Respondent-
Employer to grant him pay scale as genuine in place of anomaly in
pay scale in parity with other similarly situated persons. Therefore,
the claim having a continuous cause of action, the plea of limitation
or laches cannot be sustained in this case.”
(emphasis supplied)
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11.3 It would also be fruitful to refer the decision
of the Co-ordinate Bench of this Court [Hon’ble Mr.
Justice N.V. Anjaria, his lordship then was] in the case
of Mohanbhai Dudabhai Vadhiyari (supra), wherein held
thus:
“5.8 The denial of higher pay scale benefit to a government
servant or an employee when he is entitled to under the
conditions and provisions of the Scheme for grant of higher pay
scale, is a recurring injury to the government servant. It is a
continuing wrong committed by a employer.”
(emphasis supplied)
11.4 Additionally, it would also be apt to refer the
decision of the Hon’ble Apex Court in the case of Union
of India Vs. Tarsem Singh reported in (2008) 8 SCC
648, whereby it observed and held thus:
“4. The principles underlying continuing wrongs and
recurring/successive wrongs have been applied to service law
disputes. A “continuing wrong” refers to a single wrongful act
which causes a continuing injury. “Recurring/successive
wrongs” are those which occur periodically, each wrong giving
rise to a distinct and separate cause of action. This Court in
Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar
Maharaj Sansthan [AIR 1959 SC 798] explained the concept of
continuing wrong (in the context of Section 23 of the Limitation
Act, 1908 corresponding to Section 22 of the Limitation Act,
1963): (AIR p. 807, para 31)“31. … It is the very essence of a continuing wrong that it
is an act which creates a continuing source of injury and
renders the doer of the act responsible and liable for the
continuance of the said injury. If the wrongful act causes
an injury which is complete, there is no continuing wrong
even though the damage resulting from the act mayPage 23 of 33
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continue. If, however, a wrongful act is of such a
character that the injury caused by it itself continues, then
the act constitutes a continuing wrong. In this connection,
it is necessary to draw a distinction between the injury
caused by the wrongful act and what may be described as
the effect of the said injury.”
7. To summarise, normally, a belated service related claim will
be rejected on the ground of delay and laches (where remedy is
sought by filing a writ petition) or limitation (where remedy is
sought by an application to the Administrative Tribunal). One of
the exceptions to the said rule is cases relating to a continuing
wrong. Where a service related claim is based on a continuing
wrong, relief can be granted even if there is a long delay in
seeking remedy, with reference to the date on which the
continuing wrong commenced, if such continuing wrong creates
a continuing source of injury. But there is an exception to the
exception. If the grievance is in respect of any order or
administrative decision which related to or affected several
others also, and if the reopening of the issue would affect the
settled rights of third parties, then the claim will not be
entertained. For example, if the issue relates to payment or
refixation of pay or pension, relief may be granted in spite of
delay as it does not affect the rights of third parties. But if the
claim involved issues relating to seniority or promotion, etc.,
affecting others, delay would render the claim stale and doctrine
of laches/limitation will be applied. Insofar as the consequential
relief of recovery of arrears for a past period is concerned, the
principles relating to recurring/successive wrongs will apply. As
a consequence, the High Courts will restrict the consequential
relief relating to arrears normally to a period of three years
prior to the date of filing of the writ petition.”
(emphasis supplied)
11.5 Further, it would be apt to refer the decision
of the Hon’ble Apex Court in the case of Rushibhai
Jagdishbhai Pathak Vs. Bhavnagar Municipal Corporation
reported in (2022) 18 SCC 144, more particularly, Paras-
8 to 10 and 14 are relevant, which read thus:
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“8. The doctrine of delay and laches, or for that matter statutes
of limitation, are considered to be statutes of repose and statutes
of peace, though some contrary opinions have been expressed.
[ See Nav Rattanmal v. State of Rajasthan, 1961 SCC OnLine SC
321 : AIR 1961 SC 1704] The courts have expressed the view
that the law of limitation rests on the foundations of greater
public interest for three reasons, namely,
(a) that long dormant claims have more of cruelty than
justice in them;
(b) that a defendant might have lost the evidence to
disapprove a stale claim; and
(c) that persons with good causes of action (who are able
to enforce them) should pursue them with reasonable
diligence. [State of Kerala v. V.R. Kalliyanikutty, (1999) 3
SCC 657 relying on Halsbury’s Laws of England, 4th
Edn., Vol. 28, Para 605; Halsbury’s Laws of England,
Vol. 68 (2021), Para 1005.]
Equally, change in de facto position or character, creation of
third-party rights over a period of time, waiver, acquiescence,
and need to ensure certitude in dealings, are equitable public
policy considerations why period of limitation is prescribed by
law. Law of limitation does not apply to writ petitions , albeit the
discretion vested with a constitutional court is exercised with
caution as delay and laches principle is applied with the aim to
secure the quiet of the community, suppress fraud and perjury,
quicken diligence, and prevent oppression. [ See Popat and
Kotecha Property v. SBI Staff Assn., (2005) 7 SCC 510]
Therefore, some decisions and judgments do not look upon pleas
of delay and laches with favour, especially and rightly in cases
where the persons suffer from adeptness, or incapacity to
approach the courts for relief. However, other decisions, while
accepting the rules of limitation as well as delay and laches,
have observed that such rules are not meant to destroy the rights
of the parties but serve a larger public interest and are founded
on public policy. There must be a lifespan during which a person
must approach the court for their remedy. Otherwise, there
would be unending uncertainty as to the rights and obligations of
the parties. [ See N. Balakrishnan v. M. Krishnamurthy, (1998) 7
SCC 123]
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9. Referring to the principle of delay and laches, this Court, way
back in Moon Mills Ltd. v. M.R. Meher [Moon Mills Ltd. v. M.R.
Meher, 1967 SCC OnLine SC 117 : AIR 1967 SC 1450] , had
referred to the view expressed by Sir Barnes Peacock in Lindsay
Petroleum Company v. Prosper Armstrong Hurd [Lindsay
Petroleum Company v. Prosper Armstrong Hurd, (1874) LR 5
PC 221] , in the following words : (Lindsay Petroleum Company
case [Lindsay Petroleum Company v. Prosper Armstrong Hurd,
(1874) LR 5 PC 221] , PC pp. 239-40)
“Now the doctrine of laches in Courts of Equity is not an
arbitrary or a technical doctrine. Where it would be
practically unjust to give a remedy, either because the
party has, by his conduct, done that which might fairly be
regarded as equivalent to a waiver of it, or where by his
conduct and neglect he has, though perhaps not waiving
that remedy, yet put the other party in a situation in which
it would not be reasonable to place him if the remedy were
afterwards to be asserted, in either of these cases, lapse of
time and delay are most material. But in every case, if an
argument against relief, which otherwise would be just, is
founded upon mere delay, that delay of course not
amounting to a bar by any statute of limitations, the
validity of that defence must be tried upon principles
substantially equitable. Two circumstances, always
important in such cases, are, the length of the delay and
the nature of the acts done during the interval, which
might affect either party and cause a balance of justice or
injustice in taking the one course or the other, so far as
relates to the remedy.”
10. At the same time, the law recognises a “continuing” cause
of action which may give rise to a “recurring” cause of action
as in the case of salary or pension. This Court in M.R. Gupta v.
Union of India [M.R. Gupta v. Union of India, (1995) 5 SCC
628 : 1995 SCC (L&S) 1273] , has held that so long as the
employee is in service, a fresh cause of action would arise every
month when they are paid their salary on the basis of a wrong
computation made contrary to the rules. If the employee’s claim
is found to be correct on merits, they would be entitled to be
paid according to the properly fixed pay scale in future and the
question of limitation would arise for recovery of the arrears
for the past period. The Court held that the arrears should be
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calculated and paid as long as they have not become time-
barred. The entire claim for the past period should not be
rejected.
14. In Tarsem Singh [Union of India v. Tarsem Singh, (2008) 8
SCC 648 : (2008) 2 SCC (L&S) 765], the delay of 16 years in
approaching the courts affected the consequential claim for
arrears and thus, this Court set aside the direction to pay arrears
for 16 years with interest. The Court restricted “the relief
relating to arrears to only three years before the date of writ
petition, or from the date of demand to date of writ petition,
whichever was lesser”. Further, the grant of interest on arrears
was also denied.”
(emphasis supplied)
12. Thus, in view of the aforesaid ratio decidendi
stands as on date, I am of the view that though the
petitioner has approached this Court after about six
years from the denial of the higher pay scale of Rs.
5500-9000 by the respondent, yet for the foregoing
reasons, this Court is not inclined to accept the
submissions of Mr. Patel, learned Senior Advocate for the
respondent, that it should not entertain this petition on
the ground of delay and laches. According to my view,
as there is “continuous wrong” on the part of respondent
in denying the legitimate claim of the petitioner, id est,
appropriate higher pay scale, keeping in mind the said
decisions, while giving final relief to the petitioner, right
to receive monetary benefit can be restricted to three
years prior to the filing of the petition.
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13. So far as the second limb of argument of Mr. Patel,
learned Senior Advocate, is concerned that upon
acceptance of VRS by the petitioner in the year 2004, he
would not entitle to receive the benefit of a higher pay
scale. The stance of the respondent is not sustainable in
law, inasmuch as it is hit by the principle of promissory
estoppel. It is not in dispute between the parties that
post-retirement (VRS), the competent authority of
respondent had accepted that petitioner is entitled to
receive a higher pay scale, therefore, it had offered
higher pay scale of Rs.4500-7000, instead of Rs.5500-
9000. Having offered such benefit to the petitioner
knowing fully well that he had already taken VRS, later
on, the respondent cannot be permitted to take
indifferent stand that due to golden handshake by
petitioner having taken VRS, his claim in regard to
higher pay scale is foreclosed.
14. The decisions cited by Mr. Patel, learned Senior
Advocate, in support of this submission, i.e., A.K. Bindal
(supra) and Officers & Supervisors of I.D.P.L. (supra) ,
are not applicable to the facts of the present case,
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inasmuch as the facts of those particular cases are
different from the present one. Mr. Patel, learned Senior
Advocate, is unable to point out from the said two cited
decisions that the Hon’ble Apex Court had an occasion to
consider the issue of promissory estoppel, which germane
in the present case. It further appears that the case
before the Hon’ble Apex Court was not in regard to
granting of higher pay scale to an employee, who has
taken VRS, but it appears to be of revised pay scale
post-VRS. In light of the said facts, the act of the
respondent to offer a higher pay scale to the petitioner
post his voluntary retirement definitely binds the
respondent. According to my view, the respondent is
estopped in law to deny the benefit of higher pay scale
merely because the petitioner has taken VRS in the year
2004.
15. It would also be apt to refer to the decision of the
Co-ordinate Bench of this Court in the case of Ashwin
N. Acharya (supra), wherein also in a similar factual
situation, the petitioner of that petition though taken
VRS on 30.04.2004 and filed a petition in the year 2013
seeking higher pay scale of Rs. 5500-9000 like the
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present petitioner, is granted relief in favour of that
petitioner. True, the matter was carried by the
respondent in appeal before the Division Bench, but the
order dated 21.10.2010 passed by the Division Bench in
Letters Patent Appeal No. 1521 of 2018 would indicate
that the respondent is directed to pay the amount of
enhanced pension as per the aforesaid order of the Co-
ordinate Bench and further directed to deposit 50% of
arrears amount with the Registry and permitted the
petitioner of that petition to receive it upon filing an
undertaking.
16. It is trite that if State failed to give similar
benefits to similarly situated persons, it amounts to
violation of Article 14 of the Constitution of India. The
respondent, being State under Article 12 of the
Constitution of India, could not have offered different
higher pay scale to the petitioner than paid to other
similarly situated employees (Tradesman). Such impugned
action of the respondent is ex facie arbitrary and
violative of Article 14 of the Constitution of India,
requires to be interfered with by this Court to protect
the fundamental rights of the petitioner.
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17. So far as last limb of argument of Mr. Patel,
learned Senior Advocate that as per the Government
Resolution dated 14.08.1998, if there are more than one
promotional post in different scales of pay, the first
higher pay scale shall be the pay of the lowest
promotional post. According to the respondent, as such
there is only one promotional post; but in view of the
said decision of this Court, another avenue of promotion
would be Foreman, thereby there are two promotional
posts from the post of Khalasi, i.e., Mistry and Foreman,
as the case may be. So, as per the stance of the
respondent, in view of said resolution, the pay scale of
Mistry, which is lower than the post of Foreman, would
be applicable as first higher pay scale and accordingly,
the same was offered to the petitioner. This argument is
also not sustainable in law, inasmuch as the Division
Bench of this Court has categorically held that the next
promotional post of Tradesman would be Foreman and
not Mistry.
18. In view of the foregoing discussions and reasons, I
am not at all impressed with any submissions of Mr.
Patel, learned Senior Advocate for the respondent, thus,
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it is hereby rejected.
CONCLUSION:
19. In view of the aforesaid, I am of the view that the
present petition deserves to be allowed, which is hereby
party allowed with the following order/directions:
19.1 The respondent-board is hereby directed to
grant higher pay scale of Rs. 5500-9000 to the petitioner
from the date on which the petitioner is entitled to it.
19.2 As observed hereinabove, the petitioner is not
entitled to receive the arrears of such benefit from the
date of entitlement till 28.03.2010; but the respondent is
hereby directed to calculate and pay the arrears of suchbenefit, i.e., the revised enhanced pension from
01.04.2010 till its payment.
19.3 Accordingly, all consequential benefits flowing
therefrom shall be paid to the petitioner w.e.f. 01.04.2010
on or before 15.04.2026, failing which the petitioner is
entitled to receive such benefit with 6% p.a. interest
from the respondent till its realization.
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19.4 It goes without saying that upon paying the
aforesaid arrears amounts, the respondent shall pay
revised pension regularly to the petitioner.
20. In view of the foregoing conclusion, the present
petition is partly allowed, to the aforesaid extent. Rule is
made absolute to the aforesaid extent. No order as to
costs.
(MAULIK J.SHELAT,J)
DIWAKAR SHUKLA
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